Gauhati High Court
Swapan Kumar Saha vs Biswa Nath Sureka on 28 October, 2013
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
CRP No. 369 of 2012
Shri Swapan Kumar Saha,
S/O Shri Ganga Pada Saha,
C/o Medicine House, Paglasthan,
PO & Dist.-Bongaigaon, Assam.
......Petitioner.
-Versus-
Shri Biswa Nath Sureka,
S/O Shri Mangtu Ram Sureka,
resident of North Bongaigaon,
PO, PS & Dist.-Bongaigaon, Assam.
......Respondent.
Advocate(s) for the Petitioner :
Mr. M.U. Mahmud, Mr. A.T. Sarkar, Mr. M. Hussain, Mr. S. Hussain, Mr. H.R. Choudhury.
Advocate(s) for the Respondent :
Mr. G.N. Sahewalla (Sr. Adv.), Ms. M. Baruah, Md. Aslam, Mr. D. Senapati, Mr. U. Dutta, Ms. K. Kalita BEFORE THE HON'BLE MR. JUSTICE B.P. KATAKEY Date of Hearing : 20.08.2013, 21.08.2013, 04.09.2013, 11.09.2013 & 18.09.2013 Date of Judgment & Order : 14th October, 2013 CRP 369/2012 Page 1 of 22 JUDGMENT AND ORDER This revision petition is directed against the judgment and order dated 20.06.2012 passed by the learned Addl. District Judge (FTC), Bongaigaon, in Title Appeal No.2/2011, dismissing the appeal preferred by the revision petitioner/tenant, by affirming the judgment and decree dated 05.09.2001 (decree drawn on 12.09.2001) passed by the learned Civil Judge (Jr. Division), Bongaigaon, in Title Suit No.42/1993, whereby and whereunder the suit of the present respondent/landlord, filed under the provisions of the Assam Urban Areas Rent Control Act, 1972 (in short the 1972 Act), for eviction of the revision petitioner/tenant from the suit premises on the ground of defaulter, has been decreed.
2. The respondent/landlord instituted the aforesaid suit, under the provisions of the 1972 Act, for eviction of the revision petitioner/tenant from the suit premises on the ground of defaulter and bonafide requirement, contending inter alia that though the plaintiff and the defendant had entered into a rental agreement w.e.f. 11.08.1989 for letting out the suit premises at a monthly rent of Rs.800/-, for a period of 3(three) years ending on 31.07.1992 and the defendant paid an amount of Rs.5,000/- as advance, to be adjusted at the rate of Rs.200/- per month for the first 25 months of the tenancy, the defendant paid only Rs.600/- per month to the plaintiff till 31.07.1992, despite the adjustment of the aforesaid advance. It has also been contended that despite the absence of a fresh tenancy agreement, after CRP 369/2012 Page 2 of 22 expiry of the earlier tenancy created up to 31.07.1992, the defendant continued to be the tenant under the plaintiff till 31.03.1993 and the defendant continued to pay Rs.600/- per month till 31.01.1993, despite the earlier agreement for payment of Rs.800/- per month. The further pleaded case of the plaintiff is that the defendant stopped payment of the monthly rent w.e.f. 01.02.1993 and instead filed Title Suit No.9/1993 for declaration and injunction in the Court of the learned Munsiff, Bongaigaon. It has also been contended that there is violation of the terms of the tenancy as the defendant/tenant has made alteration in the suit houses without the consent of the plaintiff/landlord. The further pleaded case of the plaintiff is that the suit house is required for his own use and occupation for starting his own business for providing employment avenue for his son. The plaintiff, therefore, filed the suit for eviction of the defendant on the ground of defaulter, bonafide requirement and also for recovery of arrear rent of Rs.11,400/- till 30.11.1993.
3. The defendant/tenant contested the suit by filing written statement, denying the claim of the plaintiff and contending inter alia that the plaintiff has no locus standi to file the suit, which has been filed only with a view to exert pressure on the defendant to compel him to vacate the suit premises, so as to induct new tenant at a much higher rent and for realization of Salami. It has further been contended that the plaintiff has no right to sue the defendant, who is a lawful tenant of the suit premises and paying the rent regularly through the Court, upon refusal by the plaintiff to accept the same. The pleadings relating to CRP 369/2012 Page 3 of 22 alteration of the suit premises, apart from bonafide use and occupation of the suit premises by the plaintiff/landlord have also been denied. According to the defendant at the end of the tenancy agreement on 31.07.1992 the plaintiff allowed the defendant to continue as tenant in respect of the suit premises on the same terms and conditions and took an advance of Rs.3,400/- in the month of September, 1991, adjustable at the rate of Rs.200/- per month w.e.f. September, 1991 till January, 1993 and thereafter when the defendant offered the rent to the plaintiff w.e.f. 01.02.1993, the same having refused to be accepted, was deposited in Court along with the rent for the month of March, 1993 as advance, by filing Misc.(NJ) case, as required under the provisions of the 1972 Act. According to the defendant, he, thereafter, continued to deposit the rent in Court, under the provisions of the said Act and hence he is not a defaulter. The defendant, therefore, prays for dismissal of the suit.
4. The Trial Court, based on the pleadings of the parties, framed the following issues for determination:-
(i) Whether there is a cause of action for the suit?
(ii) Whether the suit is maintainable in its present form
and manner?
(iii) Whether the suit is barred by principles of waiver, estoppel and acquiescence?
(iv) Whether the defendant is a defaulter?
(v) Whether an amount of Rs.3,400/- taken as advance
by the plaintiff?
(vi) Whether the suit premises has been correctly
mentioned in the schedule?
CRP 369/2012 Page 4 of 22
(vii) Whether the suit premises is bonafide required by the plaintiff?
(viii) Whether the plaintiff is entitled to a decree as prayed for?
(ix) To what other relief/reliefs the parties are entitled to under law and equity?
5. The plaintiff, in order to prove his case, as projected in the plaint, has examined himself as PW-1 and proved a number of documents. The defendant has also examined 3(three) witnesses including himself and proved a number of documents including various NJ cases, by which the rents for different months were deposited in Court, to prove that he is not a defaulter. The Trial Court upon appreciation of the evidence on record, vide judgment dated 05.09.2001 decreed the suit of the plaintiff for eviction of the defendant on the ground of defaulter and also for recovery of arrear rent of Rs.11,400/- till 30.11.1993. The contention of the plaintiff that the suit house is required for his bonafide use and occupation, however, has been rejected.
6. Being aggrieved, the defendant preferred Title Appeal No.16/2001 in the Court of the learned Civil Judge (Senior Division), Bongaigaon, which was allowed vide judgment and order dated 07.03.2002, by setting aside the judgment and decree passed by the Trial Court by holding that since the defendant has deposited the rent in Court, under the provisions of the 1972 Act, he is not a defaulter. The plaintiff challenging the said judgment and decree in Civil Revision Petition No.127/2002 in this Court, which was allowed vide judgment CRP 369/2012 Page 5 of 22 and order dated 13.03.2006, by setting aside the judgment and decree dated 07.03.2002 passed by the learned Civil Judge (Senior Division) in the aforesaid appeal and remitted the matter to the lower appellate Court for a fresh decision on all the issues on the basis of the pleadings and the evidence on record, as the lower appellate Court has failed to take note of the relevant evidence on record in deciding the relevant issues including the issue relating to the defaulter. The lower appellate Court, thereafter, passed the impugned judgment and decree dated 20.06.2012, dismissing the appeal preferred by the defendant/tenant by affirming the judgment and decree passed by the Trial Court. Hence the present revision petition by the defendant/tenant.
7. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. G.N. Sahewalla, learned Sr. counsel appearing for the respondent.
8. Mr. Mahmud, the learned counsel appearing for the defendant/tenant has submitted that the issues involved in the present revision petition are whether the defendant/tenant is a defaulter (issue No.4) and whether an amount of Rs.3,400/- was paid as advance by the defendant/tenant to the plaintiff/landlord (issue No.5), which is adjustable at the rate of Rs.200/- per month with effect from the month of September, 1991 and not the issue as to whether the suit premises is bonafide required by the plaintiff/landlord for his own use and occupation (issue No.7), as the same has been decided by both the Courts below against the plaintiff/landlord and there is neither any CRP 369/2012 Page 6 of 22 cross-objection nor revision petition filed by the plaintiff/landlord against the finding recorded on the said issue.
9. The learned counsel referring to the deposition of witnesses examined, more particularly of the DWs, has submitted that the defendant could prove that an amount of Rs.3,400/- was paid in advance in the month of September, 1991 to the plaintiff/landlord, which amount is adjustable @Rs.200/- per month and it is also being the admitted case of the plaintiff that the defendant continued to pay the rent up to 31.01.1993, the defendant/tenant cannot be termed as defaulter, since he has deposited the rent in Court, as required under sub-section (4) of Seciton 5 of the 1972 Act, on being refused to accept by the plaintiff/landlord, when tendered, along with the rent payable for the month of March, 1993, which deposit has been proved by the defendant by proving the N.J. case which has been marked as Ext.-G. The learned counsel further submits that the pleadings of the plaintiff that they have accepted the rent @Rs.600/- per month up to 31.01.1993 also supports the contention of the defendant/tenant that an amount of Rs.3,400/- has been paid in advance in September, 1991, which was adjusted @Rs.200/- per month and the remaining amount of Rs.600/- was paid by the defendant to the plaintiff up to 31.01.1993.
10. The learned counsel further submits that the rent for every two months, for one month in advance, were, thereafter, deposited in Court, as required under the provisions of the 1972 Act, without, however, offering the same to the plaintiff/landlord, as the plaintiff CRP 369/2012 Page 7 of 22 initially refused to accept the rent payable for the month of February, 1993. According to the learned counsel once the plaintiff/landlord refuses to accept the rent payable, it is not the requirement of law to offer the rent to the landlord for the succeeding months, before depositing the same in Court under the provisions of the 1972 Act, as the same would be a mere formality and hence the deposit of rent in Court without tendering the same first to the plaintiff/landlord for the succeeding months would be valid deposit within the meaning of the 1972 Act, more so when it is in evidence that the relationship between the parties has strained because of various civil suit between them. Mr. Mahmud further submits that on the same analogy the deposit of rent in advance would also be the valid deposit under the provisions of the aforesaid law. It has also been submitted that the plaintiff/landlord in fact has withdrawn the amount deposited in Court, after receipt of the notices in the N.J. cases, and hence the plaintiff/landlord has accepted that the defendant is not a defaulter. The learned counsel, therefore, submits that the lower appellate Court has committed illegality in dismissing the appeal preferred by the defendant/tenant by upholding the judgment and decree passed by the Trial Court.
11. The learned counsel in support of his contention has placed reliance on the decisions of this Court in Muhit Kumar Deb Roy & ors. Vs. Gaurangalal Roy reported in 1986(1) GLR 442; Radio Talkies Equipment Company Vs. Debadas Ghosh & ors. reported in 2001(2) GLT 471 and Keshab Chandra Singha & ors. Vs. Moulovi Abdul Matin Choudhury & ors. reported in 2006(2) GLT 731. CRP 369/2012 Page 8 of 22
12. Mr. Sahewalla, the learned Sr. counsel appearing for the respondent/plaintiff, supporting the judgment and decree passed by the Courts below, has submitted that though it has been pleaded by the defendant/tenant in the written statement filed that a further amount of Rs.3,400/- was advanced in the month of September, 1991, adjustable @Rs.200/- per month, the said plea taken by the defendant, however, could not be proved by him by adducing any evidence and hence both the Courts below have recorded the finding of fact that no such advance was paid by the defendant/tenant. It has been submitted that such finding of fact cannot be disturbed in revision, under Section 115 of the Civil Procedure Code, unless of course the perversity in recording such finding is demonstrated, which having failed to do by the revision petitioner/defendant, this revisional Court may not interfere with such concurrent finding of fact by both the Courts below. The learned Sr. counsel, therefore, submits that it is evident that the defendant is a defaulter in respect of payment of rent w.e.f. 01.08.1992 as he has paid the monthly rent of Rs.600/- against the agreed rent of Rs.600/- up to 31.01.1993 and thereafter from 01.02.1993 he has stopped payment of rent at all.
13. Mr. Sahewalla further submits that before depositing the rent in Court payable in the month of February, 1993 as the defendant/tenant did not tender the rent to the plaintiff, as required under the provisions of the 1972 Act, such deposit would not be valid deposit so as to debar the Civil Court from passing a decree for eviction CRP 369/2012 Page 9 of 22 of the defendant/tenant on the ground of defaulter. The learned Sr. counsel also submits that it is evident from various N.J. cases proved by the defendant in the suit i.e. Exts.-G and H to H(43) that the rents for 2(two) months were deposited in Court, which includes the rent for a month in advance. According to the learned Sr. counsel since such rent were deposited in Court without tendering the same to the plaintiff/landlord for each month and the rent for few months were deposited in advance, the same cannot be termed as valid deposit within the meaning of sub-section (4) of Section 5 of the 1972 Act.
14. The learned Sr. counsel further submits that the revisional Court, in a proceeding instituted under the provisions of 1972 Act, can also take note of the fact that the defendant/tenant has defaulted in payment of rent even after the decree by the Civil Court is passed and in the instant case as it is evident from the additional affidavit filed by the defendant that the rent payable to the plaintiff/landlord, after the decree was passed, was deposited in Court, without tendering the same first, that too in the name of three persons including the plaintiff, though the other two persons are not the landlords, such deposit is not valid deposit in Court and hence in any event the defendant is liable to be evicted from the suit premises on the ground of defaulter. The learned Sr. counsel submits that withdrawal of the rent deposited by the defendant/tenant in Court by the plaintiff/landlord would not wipeout the default in payment of rent by the defendant/tenant. CRP 369/2012 Page 10 of 22
15. The learned Sr. counsel in support of his contention has placed reliance on the decisions of the Apex Court in Dr. Brahmanand Vs. Smt. Kaushalya Devi & anr. reported in AIR 1977 SC 1198 and of this Court in Satya Deo Bhitha & anr. Vs. Rajkumar Devi & ors. reported in 2002(1) GLR 122 and Bata India Ltd. & ors. Vs. United Publishers & anr. reported in 2005(1) GLT 437.
16. In reply, Mr. Mahmud, the learned counsel for the revision petitioner/defendant, has submitted that even after passing the decree by the Trial Court, for eviction of the defendant from the suit premises on the ground of defaulter, he continued to deposit the rent in Court, under the provisions of 1972 Act and hence he cannot be termed as defaulter within the meaning of the said Act. The learned counsel further submits that after the decree was passed, the rent in the names of three persons including the plaintiff/landlord has been deposited in Court, other two persons having instituted a suit, where the revision petitioner has also been arrayed as defendant, claiming that they have also the share over the suit premises. The learned counsel further submits that in any case since such deposit was made as per the advice of the learned counsel engaged by him, the fault, if any, in making such deposit in the names of three persons including the plaintiff/landlord being the fault of the lawyer engaged by him, the defendant/tenant cannot be allowed to suffer for the wrong advice, if any. The learned counsel, therefore, submits that the revision petitioner, therefore, cannot be termed as defaulter. The learned counsel in support of the contention, that for the fault of the lawyer the revision petitioner should CRP 369/2012 Page 11 of 22 not suffer, has referred the decisions of the Apex Court in Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao reported in (2012)9 SCC 512.
17. Altogether 9(nine) issues were framed by the Trial Court, based on the pleadings of the parties, the learned counsel appearing for the parties have advanced their arguments, in the present revision petition, on two issues, namely, issue Nos.4 and 5, which are reproduced below:-
(iv) Whether the defendant is a defaulter?
(v) Whether an amount of Rs.3,400/- was taken as
advance by the plaintiff?
Hence in the present revision petition only the aforesaid two issues are discussed, since no dispute has been raised relating to the finding recorded in respect of other issues.
18. Both the Courts below have answered issue No.5 i.e. whether an amount of Rs.3,400/- has been paid as advance to the plaintiff, in negative by holding that the defendant though setup such plea, he, however, could not prove that the aforesaid amount of Rs.3,400/- has been paid in advance. Such finding recorded by both the Courts below has been challenged by the revision petitioner on the ground of perversity and hence I have perused the evidence adduced by both the parties in relation to the said issue.
CRP 369/2012 Page 12 of 22
19. It is the pleaded case of the plaintiff that he continued to accept the rent @Rs.600/- per month, w.e.f. 01.08.1992, after the period of tenancy, created vide Ext.-2 tenancy agreement w.e.f. 01.08.1989 till 31.07.1992, was over. It has also been pleaded that the defendant/tenant continued to pay Rs.600/- per month up to January, 1993, for which the rent receipts were issued, though the agreed rent was Rs.800/- per month. The plaintiff, therefore, claims arrear rent @Rs.200/- per month w.e.f. 01.08.1992 till 31.01.1993. The further pleaded case, as noticed above, of the plaintiff, is that the defendant stopped payment of rent w.e.f. 01.02.1993. On the other hand, the defendant has pleaded that after expiry of initial period of lease on 31.07.1992, the plaintiff allowed the defendant to continue the tenancy as before, on the same rate of rent and took an amount of Rs.3,400/- as advance in the month of September, 1991, which was adjustable against the rent @Rs.200/- per month with effect from the month of September, 1991 till the month of January, 1993 and thereafter the rent payable for the month of January, 1993 along with the rent payable for the month of March, 1993 has been deposited in Court, as the plaintiff refused to accept the rent payable for the month of February, 1993, on being tendered by the defendant.
20. The defendant in support of the contention, relating to payment of Rs.3,400/- as advance, has also adduced oral evidence of the defendant himself apart from other persons, who were present at the time of making such advance. As discussed above, the pleaded case of the plaintiff that he continued to receive rent @Rs.600/- per month CRP 369/2012 Page 13 of 22 up to 31.01.1993 from the defendant. It has also come in evidence that the plaintiff on receipt of the rent of Rs.600/- per month issued receipt to the defendant up to the month of January, 1993. That rent was received by the plaintiff without raising any objection and without any murmur. The plaintiff never objected in receiving the rent @Rs.600/- per month up to 31.01.1993, for which the receipts have also been issued. Such conduct of the plaintiff lend supports to the defendant's case that an amount of Rs.3,400/- has been paid as advance in the month of September, 1991, which is adjustable @Rs.200/- per month and accordingly the remaining rent @Rs.600/- per month was paid to the plaintiff up to 31.01.1993. Hence the finding recorded by the Courts below that the defendant could not prove that an amount of Rs.3,400/- was paid to the plaintiff as advance, needs to be set aside, which I accordingly do. Issue No.5 is, therefore, decided in favour of the defendant and against the plaintiff.
21. This leads to the question as to whether the defendant is a defaulter (Issue No.4). Sub-section (1) of Section 5 of the 1972 Act imposes a bar on the Civil Court against passing and execution of decree and order for ejection, so long as the tenant pays the rent to the full extent allowable under the Act and performs the conditions of the tenancy. Such decree, however, can be passed on happening of any of the conditions stipulated in clauses (a) to (f) to the proviso thereto, which includes the ground of bonafide requirement and defaulter. Sub- section (4) of Section 5 of the said Act provides that where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may, CRP 369/2012 Page 14 of 22 within a fortnight of its becoming due, deposit in Court the amount of such rent together with the process fee for service of notice upon the landlord. The tenant, who has made such deposit shall not be treated as defaulter within the meaning of clause (e) of the proviso to sub-section (1) of Section 5 of the 1972 Act. The tenant is, therefore, protected from eviction on the ground of defaulter, subject to fulfillment of the conditions stipulated in sub-section (4) of Section 5 of the said Act, i.e. deposit of rent in Court, together with the process fee, within a fortnight of its becoming due, when the landlord refuses to accept the lawful rent offered by the tenant. If the tenant, on whom burden of proof lies, is successful in demonstrating fulfillment of the said requirements, no decree for his eviction, on the ground of defaulter, can be passed by a Civil Court.
22. In the instant case, the defendant, who has examined himself as DW-1, in his evidence has categorically stated that the rent payable for the month of February, 1993 was offered to the plaintiff/landlord in the first week of next month, namely, the month of March, 1993, which he has refused to accept and hence he has deposited the rent in Court by filing N.J. case (Ext.-G), within a fortnight of its falling due, together with the rent payable for the month of March, 1993 in advance. DW-1 has also stated that while the rent was offered to the plaintiff no other person was present. DWs-2 and 3 naturally, therefore, did not know about offer of the rent. The plaintiff (PW-1), however, was denied making of such offer by the defendant. It is an admitted position of fact that the rent payable up to the month of CRP 369/2012 Page 15 of 22 January, 1993 has been paid regularly to the plaintiff, who accordingly issued the receipts. There is reason why the defendant would not offer the rent payable in February, 1993 to the landlord when he has paid the rent to him(landlord) regularly till January, 1993. Couple with that the plaintiff (PW-1) in his deposition admitted bitter relationship with the defendant because of earlier suits, which also lends support to the defendant's case of refusal to accept rent for the month of February, 1993. That being the position, the finding of fact recorded by the lower appellate Court that the rent for the month of February, 1993 was not offered to the plaintiff cannot be sustained and hence such finding is set aside.
23. Next question which requires determination is whether deposit of rent in advance, based on the facts of this case, is a valid deposit within the meaning of the 1972 Act. The plaintiff (PW-1) during cross-examination has admitted that though there was cordial relationship between the plaintiff and the defendant, such relationship became strained after institution of another suit by the defendant against the plaintiff. A Single Bench of this Court in Muhit Kumar Deb Roy (supra), while considering as to whether the payment of rent in Court in advance before due date would be a valid deposit within the meaning of sub-section (4) of Section 5 of the 1972 Act, in the light of the decision of the Apex Court in Dr. Brahmanand(supra), has held that when the landlord refuses to accept the rent offered by the tenant for a month and accordingly the tenant deposit the rent for the month within the time allowed under the provisions of law together with the CRP 369/2012 Page 16 of 22 rent for the next month in advance, such deposit in advance would be valid deposit, as the physical payment or offer by the tenant for every month and/or wait for the rents becoming due, will be an idle formality.
24. In Dr. Brahmanand (supra) the Apex Court, while considering the provisions of United Provinces (Temporary) Control of Rent and Eviction Act, 1947, in relation to the offer of rent and permissibility of making the rent deposit in Court, when refuses to accept the same by the landlord, has observed that physical offering of rent, when the relation between the parties are strained, is to ask for trouble and be impractical and hence such deposit of rent in Court without offering the same to the landlord, once the landlord refuses to accept the same for the previous month, would be the valid deposit in Court.
25. As discussed above, there being evidence of strained relationship between the plaintiff/landlord and the defendant/tenant and also as held above, there was offer of rent by the defendant/tenant to the plaintiff/landlord payable for the month of February, 1993, which was refused to be accepted by the landlord, the offer of the rent for subsequent months, before making deposit in Court, would be an idle formality. The deposit of rent in advance, after the initial deposit in Court on being refused to accept by the landlord when tendered, would, therefore, be a valid deposit, having regard to the facts and circumstances involved in this case. The said question having not been CRP 369/2012 Page 17 of 22 arose for consideration in Bata India Ltd.(supra), said decision is not relevant in the context of the present issue.
26. It appears from the evidence adduced by the parties that the defendant/tenant has deposited the rent in Court till the decree was passed by the Civil Court. Rent deposit proceedings (N.J. cases) have been proved and marked as Exts.-G and H to H(43). By Ext.-G, rent deposit proceeding, the rent for the months of February and March, 1993 were deposited, when the plaintiff/landlord refuses to accept the rent, payable for the month of February, 1993 on being tendered by the defendant/tenant. Deposit of rent payable for the month of February, 1993 was made within a fortnight of its becoming due, with the process fee. The rent due in the month of March, 1993 was also deposited in Court together with the rent payable for the month of February, 1993. The rent for the month of March, 1993 has, therefore, been deposited in advance. For the subsequent months i.e. from the month of April, 1993, rents for two months were deposited by filing one rent deposit proceeding. While the rent for one month has been deposited within the time, the rent for the other month was deposited in advance. In view of what has been discussed herein above, the defendant/tenant cannot held to be defaulter in payment of rent up to the date of passing the decree, as they have deposited the same in Court together with the process fee as required under sub-section (4) of Section 5 of the 1972 Act. The said rent has also been withdrawn by the plaintiff/landlord, though such withdrawal may not wipeout the default in payment of rent CRP 369/2012 Page 18 of 22 by the defendant, as held by this Court in Radio Talkies Equipment Company (supra) and Keshab Chandra Singha (supra).
27. The question whether the subsequent conduct of non- payment, if any, of rent, after the decree was passed by the Civil Court, can be considered in a revision petition filed challenging the decree passed by the Civil Court, would now be considered. A Single Bench of this Court in Satya Deo Bhitha (supra), relying on an earlier decision in Abdul Matin Choudhury & ors. Vs. Nilayanda Dutta Banik reported in 1997(2) GLT 590, has held that the liability of the tenant shall subsist all through the proceedings even when the matter is pending in the highest Court. It has further been held that once a tenant fails to discharge his duties, he is liable to eviction at any stage during the pendency of any proceeding and once a tenant is found to be a defaulter on the basis of the record available before the revisional Court, there is no bar in taking into consideration of the subsequent event during pendency of the proceeding and to pass a decree of eviction.
28. The bar created by sub-section (1) of Section 5 of the 1972 Act for passing a decree of eviction of tenant, amongst other, on the ground of defaulter, being available so long as the tenant pays the rent to the landlord or deposit the same in Court, as required under sub- section (4) of Section 5 of the said Act, the conduct of the tenant, after passing of the decree by the Civil Court, relating to payment of rent, can also be taken into consideration by the lower appellate Court as CRP 369/2012 Page 19 of 22 well as by the revisional Court, provided no disputed question of fact relating to default, after passing a decree by the trial Court, is involved and for determination of such question, no further evidence is required to be adduced.
29. In the case in hand, the plaintiff in the affidavit filed in the revision petition has contended that the defendant is a defaulter as he has not deposited the rent in the name of the plaintiff/landlord in Court, after the decree was passed by the Trial Court, which, however, has been denied by the defendant in the affidavit filed, contending that the rent has been deposited in Court, even after passing of the decree by the Trial Court. Perusal of the averments made by the defendant in the said affidavit reveal that the defendant has deposited the rent in Court in the name of three persons i.e. the plaintiff and two others, though the defendant in the written statement filed in the suit has admitted that the plaintiff is the landlord. The defendant has also admitted that he has deposited the rent from February, 1993 onward till the date of passing the decree in Court in the name of the plaintiff/landlord and not in the name of other two persons. The stand taken by the defendant that such deposit of rent, in the names of three persons including the plaintiff, is made because of the suit instituted by the other two persons claiming right over the suit property, cannot be accepted, it is being not the case of the defendant that the same was done pursuant to an order passed by the Civil Court in the suit filed by other two persons. CRP 369/2012 Page 20 of 22
30. As discussed above, a tenant is protected from eviction provided either he pays the rent to the full extent to the landlord when it is due or deposits the same in Court in the name of the landlord within a fortnight of its becoming due, together with the process fee. Such deposit in Court would be valid only if it is made in favour of the landlord. Deposit of rent in the name of persons other than the landlord or in the names of other persons including the landlord, is not valid deposit, within the meaning of sub-section (4) of Section 5 of the 1972 Act, in the absence of any order from any Court directing deposit in the names of persons either including or other than the landlord. As noticed above, there being no dispute that the plaintiff is the landlord, unless such deposit is made in the name of the plaintiff/landlord alone, such deposit would not be valid deposit and hence the deposit of rent by the defendant, in the name of three persons including the plaintiff, would not be valid deposit within the meaning of sub-section (4) of Section 5 of the 1972 Act and hence he is not protected from eviction on the ground of defaulter. The defendant/tenant also cannot take the plea that he cannot be penalized for the action on the part of the learned counsel, who advised him to deposit the rent in the name of three persons, including the plaintiff, since it is the burden of the defendant either to pay the rent or to deposit the same in Court as required under the 1972 Act. The decision of the Apex Court in Central Bureau of Investigation(supra) cited by the learned counsel for the revision petitioner on the proposition that the parties should not suffer for the fault on the part of the learned counsel being not relevant in the case in hand is not discussed.
CRP 369/2012 Page 21 of 22
31. In view of the aforesaid discussion, I am of the view that the revision petitioner is evictable from the suit premises. The decree for recovery of arrear rent up to the date of decree by the Trial Court, however, in view of what has been discussed, is set aside.
32. The revision petition is accordingly disposed of by maintaining the decree for eviction of the revision petitioner from the suit premises. No cost.
33. Registry is directed to send down the records.
JUDGE Roy CRP 369/2012 Page 22 of 22